Thoughts of an activist lawyer

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The prosecutors in the on-going impeachment trial of Chief Justice Renato Corona owe the defense a mountain of gratitude. After all, it was the defense that proved what the prosecutors could not: That the chief justice has dollar deposits in the amount of— at least—$12 million, which he failed to disclose in his Statement of Assets, Liabilities and Net Worth.

What on earth was the defense thinking when it called on the Ombudsman as its own witness? Perhaps they thought that the Ombudsman would not honor the subpoena sent to her to testify in the Senate. But why would she ignore such a subpoena when as a retired Supreme Court magistrate, she knows all too well that unlike contempt issued by the courts, a contempt imposed by the legislature may be for a lifetime. Did they think that the Ombudsman would not disclose details of her ongoing investigation, or at least not the documents tending to show the existence of the CJ’s dollar deposits, because to disclose these would be to violate the existing law protecting the confidentiality of dollar deposits without a court order?

But why would the Ombudsman not disclose this? To begin with, the secrecy of dollar deposits is only provided for by a law, while the duty of the Ombudsman to “investigate public official” for “illegal, unjust, improper, or inefficient” acts and its power to “request any government agency for assistance and information necessary x x x and to examine, if necessary, pertinent records and documents” are both provided for by the Constitution. Pursuant to the principle of hierarchy of laws, the Constitutional provisions on the Ombudsman prevail over the prohibition of the FCDU law.

What makes the defense act even more perplexing is that from the declarations of the Ombudsman herself, she apparently had no intention of taking the stand in the ongoing trial. When asked by Senator Miriam Defensor Santiago to what purpose the Ombudsman could investigate an impeachable officer such as the CJ, the Ombudsman responded that is was only for the purpose of “recommending to Congress the filing of an impeachment complaint after the one-year ban in December of this year.” Ergo, her investigation, if warranted, would have resulted only in a letter to the Speaker of the House perhaps recommending a second impeachment proceeding against the chief justice. This implies that she did not see taking the stand as an option.

So the question is: Why did they do it?

Lawyer Jose Roy III said it was upon the express order of Corona himself, to know what the Ombudsman has. I guess the defense achieved its purpose—except that in the process, they crucified their client.

The defense, after realizing that the Ombudsman dropped a bomb shell against the chief justice, is now saying that the information divulged are: one, not accurate, because the amounts were not verified by the Ombudsman herself; and two, in any case, illegally obtained and hence inadmissible.

Such are admirable attempts to contain the consequences of their self-inflicted damage. But these are utterly bereft of merit. To begin with, the Ombudsman divulged the documents only insofar as it forms part of her ongoing investigation about an alleged dollar deposit undeclared by the chief justice in his SALN. Certainly, this was what complainants Rissa Hontiveros-Baraquel et al alleged in their complaint. Moreover, although she has not personally verified the accuracy of the accounts, she is still entitled to presume that a very specialized agency such as the Anti-Money Laundering Council would be discharging its functions regularly. If at all, the AMLC cannot be faulted for heeding the constitutionally mandated power of the Ombudsman to solicit its assistance. Instead, it should perhaps be faulted for not conducting its own investigation even before the impeachment trial.

Moreover, the chief justice himself, in the form prescribed for the SALN, has expressly authorized the “ obtain and secure from all appropriate government agencies, x x x such documents that may show my assets, liabilities, net worth, business interests and financial connections.” How can he now complain about the acts of the Ombudsman?

With the testimony of the Ombudsman, Corona has put the last nail in his own coffin. Ironically, we have the defense to thank for this.

I am one of those disturbed by the recent order of the Supreme Court to reopen a final and executory decision ruling that the dismissal of 1,200 Philippine Airlines flight attendants was illegal. I too, find this decision—made in response to a letter of the lawyer of one the richest men in the world—to be out of the ordinary, given that lawyers normally communicate with all courts in the form of pleadings and not through a letter. Mr. Estelito Mendoza, Esq., has got to have the most expensive letterhead in the Philippines, as far as his clients are concerned. But where I differ is in the conclusion that many have made: that is, that money may have played a role in the unusual reversal. Here, I think the Justices of the Supreme Court, like all human beings, have a right to be presumed innocent until proven otherwise.

Having said that, the problem is the lack of mechanism by which the members of highest court of the land could be held accountable for their acts as public officers. True, the Court, for the first time, created an ethics committee to investigate one of its own whom we complained may have committed plagiarism. Assuming this mechanism could be resorted to when the conduct of one of them is impugned, what will the Court do when the conduct of a majority of them- and the decision to reopen is a majority opinion of all its members- is now under question? How can the court investigate itself?

When we in the Concerned Citizens Movement accused then-President Gloria Macapagal-Arroyo of the commission of crimes as a result of the NBN-ZTE scandal, we argued that the concept of immunity from suits should cover only sovereign acts and not the commission of crimes. This was pursuant to decisions of the UK House of Lords in the Pinochet case and the US Supreme Court in Clinton vs. Flowers. Both decisions ruled that sovereign immunity extends only to sovereign acts and do not cover illegal acts that both Courts said could never be official in character.

The dilemma confronting us now is while the individual justices, unlike the President, are not entitled to immunity; it was the Court nonetheless that ruled that its justices, and the other impeachable officers, could not be the subject of criminal complaints while they remain in office. The remedy is to impeach them first from office before these complaints could be acted upon. The rationale to this is that the security of tenure intended to be enjoyed by impeachable officers would be rendered nugatory should criminal complaints against them be allowed to proceed prior to impeachment.

While I am no fan of then Tanodbayan Raul Gonzalez, I do remember sympathizing with him when, as a result of his resolve to investigate sitting members of the Supreme Court during the Cory Aquino administration, the Court sanctioned him by suspending him from the practice of law indefinitely. That decision is a clear reminder to the bar that any lawyer who insists on holding sitting members of the Court criminally liable will be deemed guilty of legal malpractice.

So in the absence of accountability, how do we now dispel the public’s suspicion that the recent flip-flop in a case involving one of the country’s tycoons was not attendant with graft?

Theoretically, the Office of the Ombudsman, on its own, has the power to conduct an investigation for the purpose of recommending to Congress to initiate impeachment proceedings should its findings justify it. But in the complaint that we filed in connection with the NBN-ZTE, the Ombudsman, then headed by Merceditas Gutierrez, insisted that in the case of a sitting President, even an investigation resulting in a mere recommendation to initiate impeachment proceedings is not allowed. Our petition impugning this decision of Gutierrez remains pending in the Supreme Court. The good news though is that the erudite Solicitor General, Joel Cadiz, has filed a manifestation and comment with the Supreme Court supporting our position that a President is not immune from the investigative powers of the Ombudsman.

Since the Court’s ethics committee may not be the best forum to investigate where the conduct of majority of the members the Court is the subject of public suspicion, my position is that the Ombudsman, on the basis of its Constitutional and legislative mandate, can unilaterally investigate the circumstance that led to the recent reversal. While the end result may just be a recommendation for Congress to initiate impeachment, its importance should not be underestimated. We only know too well, after having filed three impeachment complaints against Mrs. Arroyo, that impeachment is a political process and a “numbers game”. But with a solid recommendation from the Ombudsman, the political debate would at least take place in the context of a factual determination made by the Constitutional body created for the purpose of upholding the accountability of public officers. I doubt if such a recommendation can easily be ignored –not even by Congress.

It’s certainly a tough call for the current Ombudsman, Conchita Morales-Carpio, to investigate her former colleagues at the High Court.

Moreover, she risks suffering the fate of Gonzalez. Still, the morally unacceptable alternative is that no one does anything.